Waters v. Cleland

By the Court.— Lyon, J., delivering the opinion. It was insisted, upon the part of the plaintiff in error, Waters, that the complainant was not entitled to relief on the ground of fraud in the transaction; for, says his counsel, there was none. I am not, speaking for myself alone, so well satisfied but that the position is a sound one, and can be maintained by the adjudications of this Court in Miller vs. Cotton, 5 Ga., 341, and Robertson vs. Harwell, 4 Ga., 589, and the authorities there cited. On the other hand, it is difficult to see why the complainant is not entitled to relief on that ground upon the authority of Cameron vs. Ward, 8 Ga., 245; Jackson vs. Gray, 9 Ga., 77; and Greer vs. Caldwell, 14 Ga., 207. The latter case is very analagous, and almost immediately parallel; but waiving that question and the examination of those cases, we put the decision on the other ground of counsel for plaintiff in error, that this was a conditional sale, and not a mortgage or security given for the loan of money. All the evidence of the complainant, and none was offered by the defendant, shows that the complainant sold the negro to Waters, the defendant, for $500 00—a sum much less than-he was worth—and all of it equally shows that Waters agreed that complainant might at any time afterward refund the money so paid and take back the negro, and that in the meantime the services or use of the negro should stand against the interest on the money. The facts thus stated come directly within the rules in respect to conditional sales, laid down by this Court in Galt vs. Jackson, 9 Ga., 156, that is, the relation of debtor and [636] creditor did not exist; there was no debt, the money was not advanced by way of loan, and the grantor, complainant, had. the privilege of refunding, etc. The contract was made in April, 1852, and complainant never offered to refund the money and take back the negro until the early part of the year 1857. Counsel for Waters insists that this lapse of time amounts to an abandonment of the right. Ordinarily this would be true, for the general rule is, that where no time is fixed for the exercise of this right in conditional sales, it must be performed within a Reasonable time. What is a reasonable time must necessarily depend upon the circumstances and nature of the transaction. The circumstances of this case are peculiar, and form an exception to cases generally. The complainant was a young man, and the money he raised on the negro from his uncle, Waters, was intended to aid him in the completion of his education. The negro was all the property he had, and it was known by the defendant to be so. He had, after this transaction, to finish his studies and then to make the money by his own personal exertions before he could redeem the negro. All of this must, necessarily, have been in the contemplation of both complainant and defendant when the arrangement was entered into. How else was it expected that he could refund the money. That he could have completed his education and make enough money to refund the amount received for the negro in one or two years was unreasonable, and not to be expected. Under the circumstances, we think the time that elapsed between the contract and offer to refund was not an unreasonable one, and that the complainant’s right to redeem was not abandoned or barred by the lapse of time. Let the judgment be affirmed.